ACTA: An Outdated Agreement That Must Be Rejected

As the negotiations on ACTA come to a close, it is important to stress one more time the basic flaws of this dangerous anti-counterfeiting agreement, which compiles outdated and very controversial provisions from the United Stated and the European Union in the field of "intellectual property rights" (IPR). ACTA's bias and lack of legitimacy should compel the legislative bodies of the negotiating countries to strongly oppose its ratification and acknowledge the necessity to reform patent and copyright law.

Remaining concerns with the substance of ACTA

When the near-final text of ACTA was published[2] a few weeks ago, somewhat different reactions came from civil society. After months of an intense campaign against ACTA's worst provisions, some expressed their satisfaction to see that the most contentious issues had been partly addressed.

We published an analysis[3] in which we cautioned against these optimistic interpretations of the last draft text. Though it is correct that from a legal point of view, some provisions are now either less dangerous or optional, if ACTA is ratified, these will undoubtedly be used to push for stronger proprietary regimes over informational goods at the political level, both nationally and internationally, for instance through bilateral trade agreements. In the digital environment, the implementation of ACTA could result in the development of extra-judicial modes of copyright enforcement violating the right to a fair trial, and harm Net neutrality and freedom of expression. When this happens, the traditional policy-laundering technique of IPR lobbies – which consists in enacting extremist provisions at the international level to impose them nationally – will have succeeded.

ACTA takes us 20 years backwards and hinders the reform of the global IPR regime

But in any case, the main issue with ACTA is the fact that this international agreement takes us 20 years backwards: At a time when we should be adapting international IPR law to accommodate the emerging and progressive modes of management of knowledge-based goods[4] based on sharing, ACTA reinforces proprietary strategies that have created a strong antagonism between the producers and the users of such goods, hampering access to knowledge and culture.

With digital technologies, we enter a world in which people can collaborate to produce information on a massive scale; a world in which the propagation of already-produced information and knowledge is virtually costless. By reforming our legal systems so as to increase access to information and create appropriate funding schemes, we could unleash the potential for collaborative production and dissemination of knowledge as well as innovation. But, instead of adapting IPR law to this new state of play, the very goal of ACTA is to protect the rent-seekers who have been dominating the knowledge economy in the industrial age.

ACTA bypasses legitimate international organizations that are open to change

This is all the more unacceptable considering the fact that we are currently witnessing a change of paradigm in the international organizations traditionally in charge of “intellectual property”, such as WIPO[5] or WTO[6]. Whether it is in the field of patent or copyright, a growing number of countries understand the importance of reasserting the rights of knowledge-users1.

But this positive trend clashes with the conservatism of the European Union2, the United States, Japan and a few other “like-minded” countries who chose to bypass these relatively open and transparent organizations in order to negotiate ACTA. Through the agreement, they also seek to establish a durable ad hoc policy-making mechanism circumventing democratic procedures3. Explaining its opposition to ACTA, Brazil recently bemoaned the fact that “specific provisions in the ACTA draft text (...) may be interpreted as creating the seeds of a new international unit or organization”4. It is as though rich countries only decide to abide by international law when it suits the interest of their home-grown corporate lobbies. By doing so, they willingly bind themselves to outdated policies and prevent a much-needed change of course.

As several G20 countries as well as a great number of business, academic or public -interest organizations across the world raise objections against ACTA and call for the reform of the global IPR regime, and in particular that of copyright5, it becomes clear that ACTA is not only ill-founded but also dangerously undermines socio-economic progress. And this is why it must be rejected, even if the final text is not as bad as the IPR extremists would have wanted.

Recent Opposition to ACTA

Brazil expressed it disagreement with ACTA at WIPO in late-October, saying that "ACTA may affect the balance of rights and obligations embodied in the international intellectual property system between rights holders, on the one hand, and third parties who are users of protected goods and services, on the other"6.

China also criticized ACTA, stating that "excessive or unreasonably high standards for IPR protection could unfairly increase monopolistic profits of right holders, eating into the consumer surplus and further broadening the gap between the rich and the poor in the world"7.

The day before the release of the last ACTA draft, the Senators of Mexico (a negotiating country) passed a resolution calling for the suspension of negotiations and the the launch of a a wide-ranging consultation process8.

United Nations Special Rapporteur on the Right to Health, Anand Grover, commented during an October 28 public consultation on ACTA and the right to health, that the process for creating ACTA appears to violate international human rights obligations for ensuring participation in law making affecting access to medicines and other health issues.9.

75 US intellectual property scholars, wrote to President Barack Obama to criticize its administration for "negotiating a far-reaching international intellectual property agreement behind a shroud of secrecy, with little opportunity for public input, and with active participation by special interests who stand to gain from restrictive new international rules that may harm the public interest" 10.

2. Even though Neelie Kroes, Commissioner for the Digital Agenda, gave an impressive speech last week in Avignon, in which she stressed that "Our fragmented copyright system is ill-adapted to the real essence of art, which has no frontiers. Instead, that system has ended up giving a more prominent role to intermediaries than to artists. It irritates the public who often cannot access what artists want to offer and leaves a vacuum which is served by illegal content, depriving the artists of their well deserved remuneration. And copyright enforcement is often entangled in sensitive questions about privacy, data protection or even net neutrality". Address: http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/10/619&format=HTML&aged=0&language=EN&guiLanguage=en[8]

3. ACTA's articles 5 and 6 create the "ACTA committee", and grant it the competence to review amendments to ACTA (art 6.412). This paves the way for a durable bypassing of democracy, even after ACTA is voted.